The ‘Ched Evans’ case: why cross-examination of victims regarding their previous sexual history may be allowed

redmans-blog-analysisWith the case of Ched Evans still fresh in everyone’s mind it may be relevant to remind ourselves why the defence were entitled to cross examine the alleged victim in that case about her past sexual history. S41 of the Youth Justice and Criminal Evidence act 1999 is the authority by which a defendant may apply to the court to cross examine a victim about his or her previous sexual history.

In the case of R v M [2009] EWCA Crim 618; [2010] Crim. L.R. 792; (2009) 173 C.L. & J. 237, it was argued on appeal that the trial judge had made an error in refusing an application by the Defendant to cross examine the complainant about a false allegation of rape on the basis the judge was wrong to hold that the proposed cross-examination amounted to questioning about C’s sexual behaviour in that (1) he was wrong to distinguish the findings in the case of R. v Garaxo (Shino) [2005] EWCA Crim 1170, [2005] Crim. L.R. 883; (2) he adopted too stringent a test when assessing C’s previous allegation in that he considered it necessary that the allegation be shown to be untrue; the correct test was whether there was an evidential basis on which it would be open to the jury to conclude that the allegation was untrue.

The Court of appeal allowed the appeal as it was (1) It was clearly established that evidence or questions about previous complaints of sexual assaults which were said to be false were not about any sexual behaviour of the complainant within the meaning of s.42(1)(c). Each case was dependent on its facts and was not a matter for the exercise of discretion. Rather, it was a matter for the judge to evaluate on the basis of all the relevant material. (2) The Judge should have asked himself whether on the material before him and the answers by the complainant under cross examination would have satisfied the jury that her previous complaint was false. He was therefore wrong to hold that the proposed cross-examination was about C’s previous sexual behaviour rather than about a previous complaint and he should have concluded that s.41 did not apply. M had thus been deprived of a potentially valuable line of cross examination.